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Judicial Legislation: Examining the Relationship between the Iranian Legal System and the School of Legal Realism

Document Type : Academicm and Research

Authors

1 Associate Professor, Department of Public Law, Faculty of Law, University of Qom.

2 PhD Student in Public Law, Department of Public Law, Faculty of Law, University of Qom.

10.22091/csiw.2023.8449.2304

Abstract

Previous legal provisions cannot predict and regulate all possible future situations, and laws are composed of words that are open-textured, meaning that they are always susceptible to different interpretations. This has made the role of judges crucial in determining the content of legal rules. How is this role assessed in the fabrics of the Iranian legal system? Furthermore, what is the position of judges in lawmaking or, more precisely, what is their role in judicial legislation, and how does this position relate to the principles of public law and considerations related to the separation of powers? This descriptive-analytical research attempts to examine the conceptual framework of judicial legislation in light of the theory of "legal realism" and analyze the legitimate boundaries of judges' discretion in the production of legal rules from the perspective of public law. This analysis requires, on the one hand, the clarification of the relationship between jurisprudence and adjudication and legislation, and on the other hand, the evaluation of the relationship between the Iranian legal system and one of the modern schools of legal philosophy, namely the school of "legal realism." According to the research findings, historically, the "Mujtahid Judge" has been the authority for declaring and applying legal rules, which creates similarities between the role of judges in legal theory and the role of judges in the school of "legal realism," although currently the substitution of individual ijtihad by the will of representatives in the legislative branch has introduced a new formulation in the fundamental principles of the legal system.

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Comparative Studies on Islamic and Western Law
Volume 10, Issue 4 - Serial Number 38
December 2023
Pages 25-48
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